Exhibit 1.3
RIPE TOUCH GREENHOUSES, INC.
825,000 Units, Each Consisting of One (1) Share of Common Stock and
One (1) Class A Redeemable Common Stock Purchase Warrant
SELLING AGREEMENT
January ___, 1998
Dear Sirs:
The undersigned, Millennium Securities Corp., as representative of the
underwriters (the "Representative"), has agreed, subject to the terms and
conditions of the Underwriting Agreement dated January ___, 1998 (the
"Underwriting Agreement"), to purchase from Ripe Touch Greenhouses, Inc., a
Delaware corporation (the "Company"), an aggregate of 825,000 units (the
"Units") consisting of a total of 825,000 shares of Common Stock, par value
$.001 per share, of the Company (the "Common Stock") and 825,000 Class A
Redeemable Common Stock Purchase Warrants (the "Warrants") to purchase one share
of Common Stock, at the purchase price set forth on the cover of the Prospectus
(as hereinafter defined). The 825,000 Shares of Common Stock and 825,000
Warrants are hereinafter referred to as the "Firm Securities." The Firm
Securities, Common Stock and Warrants are more particularly described in the
enclosed prospectus (the "Prospectus"), additional copies of which will be
supplied in reasonable quantities upon request.
We are offering a part of the Securities for sale to selected dealers (the
"Selected Dealers"), among which we are pleased to include you, at the public
offering price or at such price less a concession in the amount set forth in the
Prospectus under "Underwriting", as provided herein. This offering is made
subject to delivery of the Securities and its acceptance by us, to the approval
of all legal matters by counsel, and to the terms and conditions herein set
forth and may be made on the basis of the reservation of Securities or an
allotment against subscription.
We have advised you by telegram or telex of the method and terms of the
offering. Acceptances should be sent to Millennium Securities Corp., 000 X. 00xx
Xxxxxx - 38th Floor, New York, New York 10155, Attn: Xxxxxxx Xxxxxxx, President.
We reserve the right to reject any acceptance in whole or in part.
The Securities purchased by you hereunder are to be offered by you to the
public at the public offering price, except as herein otherwise provided.
We, as Representative, may buy Securities from, or sell Securities to, any
Selected Dealer, and any Selected Dealer may buy Securities from, or sell
Securities to, any other Selected Dealer at the public offering price or at such
price less all or any part of the concession in the amount set forth in the
Prospectus under "Underwriting", as provided herein. We, as Representative,
after the initial public offering may change the public offering price, the
concession, and the reallowance set forth in the Prospectus under
"Underwriting".
Securities purchased by you hereunder shall be paid for in full at the
public offering price or such price less the applicable concession, as we shall
advise, on such date as we shall determine, on one day's notice to you, by
certified or official bank check payable in New York Clearing House funds to the
order of Millennium Securities Corp., 000 X. 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 against delivery of the Securities. If you are called upon to pay
the public offering price for the Securities purchased by you, the applicable
concession will be paid to you, less any amounts charged to your account as
provided herein, after termination of this Agreement as it applies to the
offering of the Securities. Notwithstanding the preceding two sentences, payment
for and delivery of Securities purchased by you hereunder will be made at our
option either by physical delivery of certificates representing the shares so
purchased or through the facilities of The Depository Trust Company if you are a
member or, if you are not a member, settlement may be made through a
correspondent which is a member pursuant to instructions you may send to us
prior to such specified date.
We have been advised by the Company that a registration statement for the
Securities, filed under the Securities Act of 1933, as amended (the "Securities
Act"), has become effective. You agree (which agreement shall also be for the
benefit of the Company) that in selling Securities purchased pursuant hereto you
will comply with the applicable requirements of the Securities Act and of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act"). No person is
authorized by the Company or the Representative to give any information or to
make any representations not contained in the Prospectus, in connection with the
sale of Securities. You are not authorized to act as agent for the Company or
the Representative in offering Securities to the public or otherwise. Nothing
contained herein shall constitute the Selected Dealers partners with the
Representative or with one another.
Upon your application to us, we will inform you as to the advice we have
received from counsel concerning the jurisdictions under the respective "blue
sky" or securities laws of which it is believed that the Securities have been
qualified or registered or is exempt for offer and sale, but we have not assumed
and will not assume any responsibility or obligation as to the accuracy of such
information or as to the right of any Selected Dealers to offer or sell
Securities in any jurisdiction.
As Representative, we shall have full authority to take such action as we
may deem advisable in respect of all matters pertaining to the offering or
arising thereunder. We, acting as the Representative shall not be under any
obligation to you except for obligations expressly assumed by us in this
Agreement.
We are authorized to purchase and sell the Securities and shares of Common
Stock or Warrants for long or short account and we are also authorized to
stabilize or maintain the market prices of the Common Stock and the Warrants.
You agree, from time to time until the termination of this Agreement, to
report to us the number of Securities purchased by you pursuant to the
provisions hereof which then remain unsold and, on our request, you will resell
to us any such Securities remaining unsold at the purchase price thereof if, in
our opinion, such Securities are needed to make delivery against sales made to
others.
If prior to the termination of this Agreement as it applies to the offering
of the Securities (or prior to such earlier date as we have determined) we
purchase or contract to purchase in the open market or otherwise any Securities
or shares of Common Stock or Warrants underlying the Securities which were
purchased by you from us or from any other underwriter or dealer for reoffering
(including any Securities or shares of Common Stock or Warrants which may have
been issued on transfer or in exchange for such Securities or shares of Common
Stock or Warrants), and which Securities or shares of Common Stock or Warrants
were therefore not effectively placed for investment by you, you authorize us
either to charge your account with an amount equal to the concession from the
public offering price for which you purchased such Securities, which shall be
credited against the cost of such Securities, or to require you to repurchase
such Securities at a price equal to the total cost of such purchase, including
any commissions and transfer taxes on redelivery.
You agree that except with our consent and except as otherwise provided
herein, you will not, prior to termination of this Agreement or until we notify
you that you are released from this restriction, bid for, purchase, or sell,
directly or indirectly, any Securities or any shares of Common Stock or Warrants
(or, if requested by us by telex or otherwise, any other securities of the
Company) for your account or for the accounts of customers except as broker or
agent in the execution of unsolicited brokerage orders therefor.
As contemplated by Rule 15c2-8 under the Exchange Act, we agree to mail a
copy of the Prospectus to any person making a written request therefor during
the period referred to in Rule 15c2-8, such mailing to be made to the address
given in the request. You confirm that you have delivered all preliminary
prospectuses and revised preliminary prospectuses, if any, required to be
delivered under the provisions of Rule 15c2-8 and agree to deliver all final
prospectuses and amendments or supplements thereto required to be delivered
under Rule 15c2-8. We have heretofore delivered to you such preliminary
prospectuses as have been requested by you, receipt of which is hereby
acknowledged, and will deliver such copies of the Prospectus as will be
requested by you.
Selected Dealers will be governed by the conditions herein set forth until
this Agreement is terminated. This Agreement will terminate at the close of
business on the 45th full day after the date hereof, but may be extended by us
for an additional period or periods not exceeding 45 full days in the aggregate.
Whether or not extended, we may, however, terminate this agreement or any
provision hereof at any time. Notwithstanding the termination of this Agreement,
you shall be and shall remain liable for, and will pay on demand, your
proportionate amount of any loss, liability, claim, or damage or related expense
which may be asserted against you alone, or against you together with other
dealers purchasing Securities upon the terms hereof, or against us, based upon
the claim that the Selected Dealers, or any of them, constitute an association,
unincorporated business, partnership, or separate entity.
All communications from you shall be address to Millennium Securities
Corp., 000 X. 00xx Xxxxxx - 38th Floor, New York, New York 10155, Attn: Xxxxxxx
Xxxxxxx, President. Any notice from us to you shall be deemed to have been fully
authorized by us and to have been duly given if mailed, telegraphed, or telexed
to you at the address to which this letter is mailed. This Agreement shall be
construed in accordance with the laws of the State of New York, without giving
effect to conflict of laws. Time is of the essence in this Agreement.
If you agree to purchase Securities in accordance with the terms hereof,
kindly confirm such agreement by completing and signing the form provided for
that purpose on the enclosed duplicate hereof and returning it to us promptly.
Very truly yours,
MILLENNIUM SECURITIES CORP.
By: __________________________
Xxxxxxx Xxxxxxx
President
Millennium Securities Corp.
000 X. 00xx Xxxxxx- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We hereby confirm our agreement to purchase units (the "Units"), each
consisting of one share of Common Stock, par value $.001 per share, of Ripe
Touch Greenhouses, Inc. (the "Company") (the "Common Stock") and one warrant
(the "Warrants") to purchase one share of Common Stock, allotted to us subject
to the terms and conditions of the foregoing Selling Agreement and your telegram
or telex to us referred to therein. We hereby acknowledge receipt of the
definitive Prospectus relating to the Common Stock and Warrants, and we confirm
that in purchasing Common Stock and Warrants we have relied upon no statements
whatsoever, written or oral, other than the statements in the Prospectus. We
represent that we are actually engaged in the investment banking or securities
business and that we are a member in good standing of the NASD which agrees to
comply with all applicable rules of the NASD or, if we are not such a member, we
are a foreign dealer or institution not eligible for membership in the NASD (a)
which agrees to make no offers or sales within the United States, its
territories, or its possessions or to persons who are citizens thereof or
residents therein, and, in making sales, to comply with the NASD's
interpretation with respect to free-Riding and Withholding and Rules 2730, 2740
and 2750 of the NASD Conduct Rules as if we were an NASD member and Rule 2420 as
it applies to a nonmember broker or dealer in a foreign country and (b) which in
connection with offers and sales of Common Stock and Warrants made by us outside
the United States (i) will either furnish to each person to whom any such offer
or sale is made a copy of the then current preliminary prospectus or the
Prospectus (as then amended or supplemented if the Company shall have furnished
amendments or supplements thereto), as the case may be, or inform such person
that such preliminary prospectus or the Prospectus will be available upon
request and (ii) will furnish to each person to whom any such offer or sale is
made such prospectus, advertisement, or other offering document containing
information relating to the Common Stock, the Warrants or the Company as may be
required under the law of the jurisdiction in which such offer or sale is made.
Any prospectus, advertisement, or other offering document furnished by us to any
person in accordance with clause (b)(ii) of the preceding sentence and any such
additional offering material as we may furnish to any person (c) shall comply in
all respects with the laws of the jurisdiction in which it is so furnished, (d)
shall be prepared and so furnished at our sole risk and expense, and (e) shall
not contain information relating to the Common Stock, the Warrants or the
Company which is inconsistent in any respect with the information contained in
the then current preliminary prospectus or in the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), as the case may be. It is understood that no action has been taken to
permit a public offering in any jurisdiction other than the United States where
action would be required for such purpose.
If for federal income tax purposes the Selected Dealers, among themselves
or with the Representative, should be deemed to constitute a partnership, then
we elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986, as amended, and we agree not to
take any position inconsistent with such election. We authorize you, in your
discretion, to execute and file on our behalf such evidence of such election as
may be required by the Internal Revenue Service.
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(Amount of Units) (Name of Selected Dealer)
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(Authorized Signature)
Dated: January ____, 1998
